Visa Lawyer Blog

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In connection with the recent story about ten Americans charged with trafficking in Haiti but defended their plan to bus 33 children into the Dominican Republic. We remind our readers that moving Children between countries, and exploring adoption options must be still regulated by International law. Any attempts to move children unofficially will be deemed suspicious and subject to greater scrutiny. According to the group, the children did not have any passports. Government approval is needed for any Haitian children to leave the country.

The Department of State is actively involved in addressing the potential for trafficking in persons, particularly children, in post-earthquake Haiti. The disaster in Haiti has displaced many people and separated numerous children from their families, posing great risk and higher vulnerability to human trafficking. The Department has acted swiftly to mobilize coordinated efforts both on the ground in Haiti and in Washington to prevent and combat trafficking in persons as part of the USG’s emergency response and long-term planning for recovery.

Currently, the Department of State and its partners are intensifying efforts on five different fronts, including: support for protection of vulnerable children (led by UNICEF with the government of Haiti, the Red Cross, and other international and non- governmental organizations), such as registration of unaccompanied and separated children, tracing, and family reunification; helping remobilize the Haitian Police’s Child Protection Brigades; preventing the trafficking of displaced Haitians; educating Haitians about the risks of giving away children in times of crisis; and, rebuilding the capacity of Haitian NGOs already working to protect child domestic servants, known in Haiti as restaveks. We will keep monitoring this situation and keep you posted.

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Recently USCIS issued a fact sheet on humanitarian parole that includes questions and answers and guidelines on filing.

U.S. Citizenship and Immigration Services (USCIS) provides a number of humanitarian programs and types of protection for individuals in need of shelter and/or aid from disasters, oppression, emergency medical issues and other urgent conditions. Humanitarian parole is one such program.

Humanitarian parole enables an otherwise inadmissible individual to enter the U.S. temporarily

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In his first State of the Union address, President Obama urged Congress to work together to confront the nation’s problems. He touched on many domestic issues, but Immigration was not covered much this evening.

He said:

” And we should continue the work of fixing our broken immigration system, to secure our borders, and enforce our laws, and ensure that everyone who plays by the rules can contribute to our economy and enrich our nations. In the end, it’s our ideals, our values that built America, values that allowed us to forge a nation made up of immigrants from every corner of the globe, values that drive our citizens still.”

Let’s hope the President is committed to fix the Broken system, sooner than later.

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The Department of Homeland Security now offer Haitian nationals, who were already here when the earthquake struck, Temporary Protected Status (TPS) for 18 months. That status, which would allow them to legally work, will not cover Haitians who leave their country following the devastating quake that resulted in as many as 150,000 deaths. Many Haitians flee the country, thinking they will be accepted in the US at any time and given a right to stay and work. TPS is not a right to enter, rather a relief for those illegals that are already here.

What is TPS?

Congress established a provision for short-term protection known as Temporary Protected Status (TPS). The provision sets forth criteria for the extension of temporary protection to people from certain countries experiencing political or environmental upheaval. For decades, during periods of civil strife, economic upheaval, or natural disaster, the Attorney General–in consultation with other agencies–exercised his or her discretion not to force nationals of countries experiencing these calamities to leave the United States. Individuals who were in the country illegally could present themselves and receive work authorization; those in proceedings had their cases put on hold; while those who already had orders of removal were not returned until the situation had stabilized. The relief was extra-statutory and was called “extended voluntary departure.”

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On Jan. 12, 2010, Haiti experienced an earthquake of devastating proportions. This set of questions and answers provides information for United States citizens in the process of adopting a child from Haiti.

Questions and Answers
Q. I am in the process of adopting a child from Haiti, what can I do to bring the child to the United States?
A. Department of Homeland Security (DHS) Secretary Janet Napolitano has authorized the use of humanitarian parole for the following categories of orphans in Haiti:
Category 1 Cases
Description: Children being adopted by U.S. citizens prior to Jan. 12, 2010, who have been legally confirmed as orphans available for inter-country adoption by the Government of Haiti (GOH) through an adoption decree or custody grant to suitable U.S. citizen adoptive parents.

Required Criteria:
* Evidence of availability for adoption MUST include at least one of the following:
o Full and final Haitian adoption decree; or
o GOH custody grant to prospective adoptive parents for emigration and adoption; or
o Secondary evidence in place of the above.

* Evidence of suitability MUST include one of the following:
o Approved Form I-600A, Application for Advance Processing of an Orphan Petition; or
o Current FBI fingerprints and security background check; or
o Physical custody in Haiti plus a security background check.

Please note, some of the children in this category will receive immigrant visas and others will receive humanitarian parole, depending on the completeness of the cases. Those who enter with immigrant visas will enter as aliens lawfully admitted for permanent residence. Those who enter with humanitarian parole will need to have their immigration status finalized after arrival through an application for adjustment of status.

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ComputerWorld reports about a New Jersey judge that has ordered the shutdown of three H-1B opposition Web sites.

Middlesex County Superior Court Judge James Hurley ordered firms that register domains and provide hosting services — GoDaddy Inc., Network Solutions, Comcast Cable Communications Inc. and DiscountASP.Net, to disable the three sites, ITgrunt.com, Endh1b.com, and Guestworkerfraud.com. Facebook Inc. was also ordered to disable ITgrunt’s Facebook page.

The order was made in response to a libel lawsuit filed by IT services and consulting firm Apex Technology Group Inc., based in Edison, N.J. against the three Web sites opposing the H-1B visa program. Such attacks on H1B supporters increased last year as the economic situation was gloomy, and prospects for employment were not looking good. Yet, we all know that the H1B program is not the cause of all evil and in fact is a boosting factor in creation of new jobs and opportunities for American workers. Lets hope that the antis will take it easy in 2010, and focus on the real issues at stake.

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As security at International airports tightens, we remind our readers about ESTA. On the one-year anniversary of implementing the Electronic System for Travel Authorization, the Department of Homeland Security’s U.S. Customs and Border Protection reminds U.S.-bound travelers from Visa Waiver Program countries of the ESTA requirement. Beginning January 20, CBP will initiate a 60-day transition to enforced ESTA compliance for air carriers; VWP travelers without an

approved ESTA may not be allowed to board a U.S.-bound plane.

ESTA is an electronic travel authorization that all citizens of VWP countries must obtain prior to boarding a carrier to travel by air or sea to the United States under the VWP. ESTA has been mandatory since Jan. 12, 2009 for all nationals of VWP countries traveling to the U.S under the VWP.

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Some good news for visa holders that are about to loose their visa sponsored jobs or already lost the visa job. In a decision issued today by the Board of Immigration Appeals (BIA) in Matter of Neto, which empowers immigration judges who are considering deportation of individuals with approved work-related visa petitions and pending permanent residence applications. The issue at stake is whether an immigration judge has the authority to decide whether the approved visa petition – issued for one job – remains valid when the individual changes jobs. Without a valid visa petition, the individual will not be eligible for permanent residence.

In 2000, Congress passed the American Competitiveness in the Twenty-First Century Act, which allowed applicants for permanent residence based on approved visa petitions the flexibility to change jobs. However, in 2005, the BIA decided in Matter of Perez-Vargas that an immigration judge had no authority to decide whether a new job was the same as or similar to the old job, which determines validity of their visa petition. This left these applicants for permanent residence in limbo, stripping them of the ability to benefit from the 2000 law while in removal proceedings because the judges couldn’t, and the United States Citizenship and Immigration Service wouldn’t, determine the validity of their visa petition.

Today, in Matter of Neto, the BIA overruled its own earlier decision that denied judges this authority and will now allow them to decide whether a new job is acceptable, thus keeping the individual’s eligibility for permanent residence intact. In which case, the visa petition remains valid and the immigrant worker can proceed with an application to become a lawful permanent resident – potentially saving them from deportation.

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Some updates on H2A and H2B visas. DHS issued a notice on the identification of 39 countries whose nationals are eligible to participate in the H–2A and H–2B programs for the coming year. This notice is effective 1/18/10 and shall be without effect at the end of one year after 1/18/10.

Under Department of Homeland Security (DHS) regulations, U.S. Citizenship and Immigration Services (USCIS) may only approve petitions for H-2A and H-2B nonimmigrant status for nationals of countries that the Secretary of Homeland Security, has designated by notice published in the Federal Register.

A new development to report, 11 additional countries are now joining to the list of countries whose nationals are eligible to participate in the H-2A and H-2B programs. In consideration of all of the above, this notice designates for the first time Croatia, Ecuador, Ethiopia, Ireland, Lithuania, The Netherlands, Nicaragua, Norway, Serbia, Slovakia, and Uruguay as countries whose nationals are eligible to participate in the H-2A and H-2B programs.

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The Department of State has released the new visa bulletin for February 2010 on January 8, 2010.

USCIS has reported last month that the EB-1 category was still current for all countries. In the EB-2 category, cutoff dates for mainland Chinese nationals progressed one month from April 1, 2005 to May 1, 2005, but remained the same for Indian nationals. In the EB-3 category, the cutoff dates for mainland Chinese nationals progressed 2 months from June 1, 2002 to August 1, 2002 and progressed 53 days for Indian nationals from May 1, 2001 to June 22, 2001.

This month in the EB-2 category, cutoff dates for mainland Chinese nationals moved forward 21 days from May 1, 2005 to May 22, 2005; for Indian nationals, the cutoff date remained unchanged (January 22, 2005). In the EB-3 category, cutoff dates for mainland Chinese nationals moved forward from August 1, 2002 to September 22, 2002. For Indian nationals applying in the EB-3 category, cutoff dates remained unchanged from last month (June 22, 2001). Once again, the EB-1 category is still current.

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